Chapt02 - Chapter 2: Courts and Alternative Dispute...

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Unformatted text preview: Chapter 2: Courts and Alternative Dispute Resolution 1: Judiciary's Role In American Government Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote: "It is emphatically the province and duty of the judiciary to say what the law is...." 2: Basic Judicial Requirements q Jurisdiction: "Juris" (law) "diction" (to speak) is the power of a court to hear a dispute and to "speak the law" into a controversy and render a verdict that is legally binding on the parties to the dispute. Jurisdiction q Power or authority of a court to decide a given case Over Dispute (subject matter) Over Parties (personal/in personam) q q Types of Jurisdiction-State In Personam Jurisdiction. In Rem Jurisdiction. Quasi In Rem Jurisdiction. Subject Matter Jurisdiction. Amount in Controversy. Concurrent. In Personam or "Personal" Jurisdiction q Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. Courts use long-arm statutes for nonresident parties based on "minimum contacts" with state. q Jurisdiction (Important Basic Concept) Personal (in personam) a/k/a over the parties without it, court can't render enforceable judgment affecting rights & duties of parties Where does jurisdiction come from? 1.Subject Matter from the law 2.Personal As to P when P files suit As to when lives or is present within court's geographic territory Or When transaction or event which is basis for case has substantial connection to court's territory Non-Resident Defendant Law requires minimum contacts with state sufficient to support due process notions of fair play and substantial justice. Non-Resident Defendant (continued) Defendant must have engaged in either: q q Purposeful acts IN the state Acts outside the state that are of such nature, Defendant could reasonably foresee being sued in that state In Rem Jurisdiction Power to decide issues relating to property, whether the property is real, personal, tangible, or intangible. A court generally has in rem jurisdiction over any property situated within its geographical borders. Quasi-in Rem Jurisdiction Limited in personam jurisdiction over an absent person by asserting in rem jurisdiction over any of the absent person's property which is situated within the state in which the action is filed. Jurisdiction (Important Basic Concept) Two Kinds: 1. Subject Matter the kinds of cases court is authorized to hear without it, any action taken by court is without legal effect Federal Court Jurisdiction q "Federal Question" cases in which the rights or obligations of a party are created or defined by some federal law. "Diversity" cases where: q q The parties are not from the same state, and The amount in controversy is greater than $75,000. q Diversity Citizenship Individual state in which she resides or is domiciled state of incorporation Corporation AND state where principal place of business is located Can in State Court get to Federal Court? Removal Venue q Venue is concerned with the most appropriate location for the trial. Generally, proper venue is where the injury occurred. q "Not another change of venue, counsellor!" Standing q In order to bring a lawsuit, a party must have "standing" to sue. Standing is sufficient "stake" in the controversy; party must have suffered a legal injury. q 3: State and Federal Court Systems Texas Courts Ct. Criminal Appeals Court of Appeals District Court County Court Municipal Federal Courts U.S. Supreme Court Supreme Court Circuit Courts of Appeals Court Justice Court U.S. District Court Appellate Courts q q Middle level of the court systems. Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. Generally, appellate courts will consider questions of law, but not questions of fact. q Supreme Courts q q Also known as courts of last resort. The two most fundamental ways to have your case heard in a supreme court are: q q Appeals of Right. By Writ of Certiorari. Federal Courts q q Created by Article III of Constitution Judges appointed for life by president Federal Courts of Appeal Hear Cases: q In panels of 3 judges OR q En Banc (not favored) En Banc Hearings Only When: q Consideration by full court is necessary to secure or maintain uniformity of its decisions OR q Proceeding involves a question of exceptional importance United States Supreme Court q q No Right of Appeal Only application for Writ of Certiorari Certiorari q Federal question of substantial importance Conflict in decisions of appellate courts q Advantages of A.D.R. q q q Speed Privacy More conducive to compromise; less adversarial Greater control over process Less expensive May have arbitrator who is expert q q q Disadvantages of A.D.R. q Give up procedural protections of judicial process Participation not compulsory & resolution non-binding (except arbitration) Outcome may be less predictable than court Court independent of parties & publicly funded q q q Negotiation q q Less than 10% of cases reach trial. Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a "meeting of the minds" in resolving the case. Successful negotiation involves thorough preparation, from a position of strength. q Assisted Negotiation q Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding "verdict." This facilitates further discussion and settlement. Expert evaluations. Conciliation: 3rd party assists in reconciling differences. q q Mediation q q Involves a neutral 3rd party (mediator). Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine "common ground." q Advantages: few rules, customize process, parties control results (winwin). Disadvantages: mediator fees, no q Arbitration q Many labor contracts have binding arbitration clauses. Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or wellrespected government official. q Arbitration Process q Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. Courts are not involved in arbitration unless arbitration clause in contract or arbitrator's award needs enforcement. q Arbitration Disadvantages q Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. Arbitrators do not have to issue written opinions. Generally, no discovery available. q q ...
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